Allen v. Weinberger

• Decision Date: 16 May 1977
• Docket Number: No. 76-1360,76-1360
• Citation: 552 F.2d 781
• Parties: Robert K. ALLEN, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 781

552 F.2d 781

Robert K. ALLEN, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare of the United States, Defendant-Appellee.

No. 76-1360.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1976.

Decided April 15, 1977.

Rehearing and Rehearing En Banc Denied May 16, 1977.

Earle McCaskill, East St. Louis, Ill., for plaintiff-appellant.

David E. Worsley, Asst. U. S. Atty., Danville, Ill., Henry A. Schwarz, U. S. Atty., East St. Louis, Ill., for defendant-appellee.

Before CASTLE, Senior Circuit Judge, and TONE and WOOD, Circuit Judges.

CASTLE, Senior Circuit Judge.

The district court upheld a decision of the Secretary of Health, Education and Welfare that plaintiff was not entitled to disability insurance benefits under the Social Security Act, 42 U.S.C. § 423. Plaintiff appeals, asserting that the Secretary's decision was unsupported by substantial evidence in two respects: first, in his determination that plaintiff had failed to establish an incapacity for employment for at least 12 months; and second, in his determination that plaintiff's disability had ceased. We reverse in part and affirm in part.

Plaintiff filed an application for disability insurance benefits on December 3, 1971. After the application was denied by the Bureau of Disability Insurance of the Social Security Administration, an Administrative Law Judge (ALJ) considered plaintiff's claim de novo and on February 23, 1973, found that plaintiff was not entitled to disability benefits. The Appeals Council, after taking additional evidence, reached the same conclusion and affirmed the ALJ's decision on February 20, 1974. This decision became the final decision of the Secretary.

The Secretary's decision must be upheld on judicial review if it is supported by substantial evidence based on the record as a whole, 42 U.S.C. § 405(g); Moon v. Celebrezze, 340 F.2d 926 (7th Cir. 1965). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

I.

Plaintiff first takes issue with the Secretary's finding that he had failed to establish an incapacity for substantial gainful activity which had lasted for a continuous period of at least 12 months. ¹ A 12-month incapacity is one criterion for the establishment of a "disability" within the meaning of section 423. ² 42 U.S.C. § 423 (d)(1)(A).

The Appeals Council recognized that plaintiff sustained an incapacitating back injury on May 19, 1971, which necessitated back surgery on September 22, 1971. In making its determination that plaintiff's incapacity lasted less than a year, the Council relied primarily on a report by Dr. Jim Swink, a specialist in orthopedic surgery who examined plaintiff on January 27, 1972. As a result of his interview with the plaintiff, Dr. Swink reported:

He feels he has had a fair to moderate relief of pain since his surgery but he continues to have back, hip and leg pain almost every day and states he is unable to do much bending or lifting and long periods of sitting make him more symptomatic.

Dr. Swink's physical examination revealed that plaintiff wore a brace with which he was able to walk with a slight limp on the left foot. The motion of plaintiff's spine appeared to be fairly normal, but there was moderate generalized atrophy of his left leg and slight generalized weakness of all its musculature. Straight leg raising was painful on the left at about 85 degrees. X-rays of the spine showed evidence of the surgery and a "few drops of radioopaque material in the neural canal" but no other apparent abnormalities. On the basis of his interview and physical examination, Dr. Swink stated:

It is my opinion that this patient presently is unable to stand or walk for long periods of time and I doubt if he could lift 10 to 25 pounds without aggravation of his existing symptoms of back and leg pain. He possibly would be able to do light work that did not involve being on his feet for long periods of time or significant bending and lifting.

The Appeals Council treated this statement as evidence that plaintiff was able to perform light work at the time of the examination.

Our review of the record disclosed the following other evidence related to the severity of plaintiff's impairment in the first year after his injury. Dr. Carlos Acosta, a general practitioner who performed the surgery on plaintiff's back, reported on January 11, 1972, that he had twice examined plaintiff since surgery and that plaintiff's response had been poor. Dr. Acosta stated, "I consider this patient totally and permanently disabled." On April 4, 1972, Dr. Acosta reported in a letter to plaintiff's attorney that he had examined plaintiff on two more occasions, and he reported his conclusion that plaintiff was totally disabled. Dr. Acosta summarized his findings in a report on November 16, 1972:

The patient has a foot drop and he has been wearing a brace. A foot drop means that the patient cannot move the dorsiflexor muscles of his left foot. The patient does have severe sciatic nerve involvement due to the severity of the disc disease, as was seen in surgery with removal of a large herniated disc. The patient has continuous back pain that prevents him from working. He is very limited, in that he cannot do any heavy lifting whatsoever. X-rays revealed spondylolisthesis. Due to the severity of his medical problem, it is my opinion that the patient is totally and permanently disabled.

The record also contains reports by Dr. Ernest A. Brav, an orthopedic surgeon, and Dr. Sydney I. Green, a neurosurgeon, each of whom reviewed the medical evidence in the case in December, 1973, and concluded that the evidence did not support a finding of total incapacity for a period of a year. Dr. Brav stated that he believed the plaintiff was able to engage in limited but regular work activity after February 1, 1972, and Dr. Green stated that the evidence suggested recovery for sedentary work as of the date of Dr. Swink's report of January 27, 1972.

The ALJ refused to accept "as factual" the repeated statement of Dr. Acosta that plaintiff was totally and permanently disabled, because the statement was not supported by any clinical findings in the record. The Appeals Council rejected the opinion of Dr. Acosta for the same reason. We do not believe that Dr. Acosta's opinion can be so easily disregarded on the question of how severe plaintiff's impairment was. Subsection (d)(3) of section 423 limits impairments for which disability benefits may be awarded to such as result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." However, the fact that plaintiff suffered a physical impairment, involving both mechanical limitation and pain, is not disputed. Only the severity of the impairment is in question. Dr. Acosta's opinion of course is not "determinative of the question of whether or not an individual is under a disability." 20 C.F.R. § 404.1526. Nor do we question the general principle that

(t)he weight to be given such physician's statement depends on the extent to which it is supported by specific and complete clinical findings and is consistent with other evidence as to the severity and probable duration of the individual's impairment or impairments. Id.

See Sykes v. Finch, 443 F.2d 192 (7th Cir. 1971). Accord, Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255, 38 L.Ed.2d 155 (1973). See also H.R.Rep.No.544, 90th Cong., 1st Sess. 30 (1967). However, we believe two factors lend substantial weight to Dr. Acosta's opinion. First, he performed surgery that permitted him to examine directly the extent of plaintiff's spinal disorder. Second, he examined plaintiff on several occasions after surgery to observe his recovery. The opinion of an examining physician that the claimant is totally disabled, though phrased as an ultimate conclusion on the question presented to the Secretary, is entitled to consideration as an indication of how severe the patient's impairment was at the time of the examination. Hall v. Celebrezze, 314 F.2d 686 (6th Cir. 1963); Massey v. Celebrezze, 241 F.Supp. 59 (E.D.Ky.1963). Where there is no dispute as to the existence of a physical or mental impairment, such an opinion, standing alone, may establish total incapacity for substantial gainful activity within the meaning of section 423. See Hassler v. Weinberger, 502 F.2d 172 (7th Cir. 1974). We believe Dr. Acosta's opinion was sufficient to establish total incapacity in the absence of substantial evidence to the contrary.

By comparison to Dr. Acosta's repeated opinion that plaintiff was totally disabled, Dr. Swink's statement on January 27, 1972, that plaintiff possibly could do light work has little weight for two reasons. First, the statement is inherently speculative and does not constitute a positive opinion. Second, while Dr. Acosta examined plaintiff on several occasions after performing surgery on his back, Dr. Swink examined him only once.

(O)nce it is determined that an impairment exists, the opinions of the treating physician are entitled to substantially greater weight than the impressions of a doctor who sees the claimant only once. Selig v. Richardson, 379 F.Supp. 594, 601 (E.D.N.Y.1974).

Accord, Floyd v. Finch, 441 F.2d 73,...